Wednesday, September 5, 2012
Chad Pomeroy (St. Mary's) has posted A Theoretical Case for Standardized Vesting Documents. The abstract:
real estate professionals, and lay people throughout the country rely
on the recording system to provide critical information regarding
ownership rights and claims. Indeed, the recording system acts as a
virtually mandatory repository and disseminator of all potential
parties’ claims. This system, in turn, relies on these claimants and
their agents to publicize their claims: property purchasers, lenders,
lien-claimants, title companies, attorneys - these parties interact,
make deals, make claims, order their affairs, and then record. The
information system available to us, then, is only as good as what we
make of it and what we put into it.
As such, it is surprising how little thought has been put into exactly what it is that we record. Should the mortgage of a lender in Ohio look like that of a lender in Florida? Should a deed from an individual in Texas differ from that of a corporation in Nevada? As it stands now, no one familiar with real estate law or commerce would expect different parties in different jurisdictions to record identical, or even similar, instruments. In an immediate sense, this heterogeneity of the recorded documents (“vesting heterogeneity”) does not seem a good thing: parties utilizing the recording system generally seek to make known, or to discern, the same generic type of information – that is, evidence of claims upon property – so why are different forms and types of documents utilized all over the country?
This article analyzes this vesting heterogeneity from a new perspective and concludes that it is, in fact, cause for significant concern. Vesting heterogeneity has arisen organically, growing with the recording system as they both evolved over time. This historical explanation does not, however, excuse the cost associated with such a lack of uniformity. Anyone seeking information with respect to any piece of property must navigate the complexities and uncertainties that arise because all such information is heterogeneous and, as a consequence, difficult to understand and utilize. This represents both a immediate transactional cost and an increased risk of ill-informed behavior.
This is particularly troublesome because this sort of cost-based concern arising from variability has a well-established analogue in property law that the law clearly desires to avoid. That analogue is the cost that would arise if property law were to permit unlimited property forms and gives rise to what is known as the numerus clausus theory. This theory explains the law’s hostility toward new, or different, types of property and holds that such heterogeneity is not generally permitted because of the extremely high informational costs associated with such creativity.
This article suggests that this common law concept can, and should, inform our analysis of vesting heterogeneity and that it precipitates strongly against such lack of uniformity. This is because the costs that drive the numerus clausus to hold that variability should be limited are strikingly similar to those created by variability of vesting documents. As such, this theory is relevant here such that the same analysis should be applied to vesting heterogeneity by asking whether a different (or “new”) document is helpful enough to outweigh the informational costs inherent therein.
Based on this reasoning, this article concludes that the law is wrong to systematically ignore heterogeneity in vesting documents. Instead, a numerus clausus type of analysis should be applied to new or different vesting documents to determine whether any inherent lack of uniformity is defensible. Where it is not, uniformity should be imposed.
Thursday, August 30, 2012
Joseph Singer (Harvard) has posted The Rule of Reason in Property Law (UC Davis Law Review, 2013). The abstract:
rights cannot work if they are not clear, and scholars generally assume
that the best way to attain this goal is to define property rights by
relatively rigid rules. However, recent evidence suggests that the
intuitive view may be mistaken. The subprime crisis shows that clear
rules do not produce clear titles if owners do not follow those rules.
And during the twentieth century property law moved dramatically away
from rigid rules toward flexible standards. Standards turn out to be
crucial to property law, as well as increasingly important in property
Empirical evidence and historical experience alike demonstrate that rules cannot be applied without being supplemented by standards to determine the scope of those rules. Conversely, standards achieve predictability through core exemplars, precedent, and presumptions. Thus rules and standards are less distinct from each other than one might imagine. Standards perform crucial functions for property law. They perform systemic functions to shape the infrastructure and the outer contours of the property system by (1) setting minimum standards compatible with the norms of a free and democratic society, (2) protecting the justified expectations of consumers, and (3) responding to externalities and systemic effects of the exercise of property rights. Standards also determine the scope of property rights by (4) distinguishing cases; (5) resolving conflicting norms; (6) excusing mistakes; (7) escaping the "dead hand" of the past; and (8) deterring the "bad man" from abusing property rights.
A few pages of the article discuss land use regulation and the shift from relatively rigid early zoning to a world in which "[n]egotiated zoning is now the norm." The core of the argument is that:
On the surface, negotiated zoning is less predictable than Euclidean zoning. One either was or was not entitled to build a certain type of structure under the old rules. But of course the predictability of traditional zoning rules was always a bit of an illusion. One could always seek a rezoning of the property by the city council, for example, or sue to obtain a variance. Since zoning boards are political creatures, they tend to grant variances if no one objects.
. . .
In some ways the modern system is more predictable. All one has to do is to obtain agreement among relevant actors within a regulatory framework. Determining whether one can or cannot successfully complete a planned development requires a prediction about whether one can convince relevant audiences that it is a good idea. Experienced developers are likely to be more accurate in guessing whether this is the case than in predicting the outcome of a lawsuit determining whether a rezoning is or is not "inconsistent with the general plan."
Friday, August 24, 2012
James Y. Stern (Virginia) has posted Property's Constitution, forthcoming in the California Law Review. The abstract:
Long-standing disagreements over the meaning of property as a matter of legal theory present a
special problem in constitutional law. The Due Process and Takings Clauses set forth individual rights that can only be asserted if “property” is at stake. Yet the leading cases interpreting constitutional property doctrines have never managed to articulate a coherent general view of property and in some instances reach opposite conclusions about its meaning. Most notably, government benefits are considered “property” for purposes of due process but not takings doctrines, a conflict the cases acknowledge but do not attempt to explain.
This Article offers a way to bring order to the confused treatment of property in constitutional law. It shows how a single definition of property can be adopted for all of the major constitutional property doctrines without the calamitous results that many seem to fear. It begins by arguing that property is best understood as the right to have some measure of legal control over the way a particular item is used, control that comes at the expense of all other people. It then argues that legal rights are a kind of private property and that, while courts and commentators are correct that legal entitlements to government benefits — so-called “new property” — should receive constitutional protection, they mistakenly believe the property at issue is the good that a recipient has a right to receive, rather than the legal right to receive it. The Article proceeds to show that legal rights are the only kind of things whose existence government can altogether extinguish and therefore that ownership of legal rights is the only kind of property right government can terminate without conferring equivalent property rights on others. The Article further argues that while due process protection should be read to apply whenever a person is denied an asserted property right (a deprivation), takings protection should only come into play when property rights are transferred from one party to another (a taking). Combining these observations, the Article concludes that termination not only of “new property” rights but also of old-fashioned in personam legal rights should trigger due process but not takings protection. This analysis provides theoretical coherence to constitutional doctrine that has thus far been lacking and it sheds light on the essential characteristics of property rights as a general matter, helping theoreticians understand more clearly the core structures of property law.
Thursday, August 23, 2012
“I can say this is the same as the crisis in Thailand in 1997,” said Hua Ngoc Thuan, the vice chairman of the People’s Committee of Ho Chi Minh City, the city’s top executive body. “Property investors pushed the prices so high. They bought for speculation — not for use.”
The article describes a Vietnam that sounds similar in many ways to the US and other places: a real estate bubble fueled by overpromotion; a recession that has left land development projects uncompleted; a disproportionate impact on younger workers; hard times for certain sectors of the economy, while others are relatively unscathed. Of course with Vietnam having dived in to the global economy in the past generation, the American recession and the European debt crisis are also having effects in Vietnam. But it's still quite interesting that the trigger seems to be a real estate bubble.
Wednesday, August 22, 2012
During my just-completed trip to Hawaii, I spent some time in the wonderful Hawaii Volcanoes National Park. The volcanic eruptions in the park continue to add new land to Hawaii’s youngest and largest island. In fact, over 500 acres of new land have been added since 1983 alone.
This led me to wonder who owned this new land. It turns out that the US Geological Survey’s Hawaiian Volcano Observatory provided a helpful answer to this question a while back. The Hawaii Supreme Court, in the 1977 case State by Kobayashi v. Zimring, 566 P.2d 725, decided the issue. Granted this is not an issue of broad relevance, but I found their resolution of the question interesting.
In Zimring, the State of Hawaii sought to quiet title over 7.9 acres of new land added after a 1955 eruption extended the shoreline. This new land, which was termed a “lava extension,” was adjacent to land purchased by the Zimrings in 1960, after the eruption. The lava flowed over the purchased land and into the ocean, forming the new 7.9 acres of land. After purchasing the adjacent land the Zimrings entered onto the new land, bulldozing it and planting trees. The State even assessed the land and collected taxes from the Zimrings on it. Nonetheless, the court found in favor of the State of Hawaii and in doing so distinguished lava flows from the common law doctrine regarding accretion of land.
The court first reviewed the history of Hawaiian law regarding private property ownership, concluding that it made clear that “land in its original state is public land and if not awarded or granted, such land remains in the public domain.” It then considered whether there was a relevant doctrine from the common law or traditional Hawaiian usage that applied in the case. It concluded that there were too few similar lava flows over private land to have established a usage.
It then considered the common law, first declaring that “[n]o court sitting at common law has had occasion to deal with the question of lava extensions.” The court distinguished the common law regarding accretion, the gradual increase of land through the deposit of soil. Under the common law, owners of contiguous land take title to land formed by accretion. In contrast, the court declared, “in cases where there have been rapid, easily perceived and sometimes violent shifts of land (avulsion) incident to floods, storms or channel breakthroughs, preexisting legal boundaries are retained notwithstanding the fact that former riparian owners may have lost their access to the water.” Similarly, it noted that under California law if an accretion is caused by artificial means, the newly created land does not belong to the upland property owner. The court concluded that “[r]ather than allowing only a few of the many lava victims the windfall of lava extensions, this court believes that equity and sound public policy demand that such land inure to the benefit of all the people of Hawaii, in whose behalf the government acts as trustee.”
It can be expected that the Loihi Seamount, which is being formed by volcanoes southeast of the Big Island, will similarly fall under control of the state when and if it emerges some thousands of years into the future.
Greg Bankoff (History--University of Hull), Ewe Lubken (Rachel Carson Center, Munich), and Jordan Sand (History--Georgetown) have published Flammable Cities: Urban Conflagration and the Making of the Modern World (U. Wisconsin Press, 2012), an edited volume of essays on the role of fires in the history of urban development. The blurb:
In most cities today, fire has been reduced to a sporadic and isolated threat. But throughout history the constant risk of fire has left a deep and lasting imprint on almost every dimension of urban society. This volume, the first truly global study of urban conflagration, shows how fire has shaped cities throughout the modern world, from Europe to the imperial colonies, major trade entrepôts, and non-European capitals, right up to such present-day megacities as Lagos and Jakarta. Urban fire may hinder commerce or even spur it; it may break down or reinforce barriers of race, class, and ethnicity; it may serve as a pretext for state violence or provide an opportunity for displays of state benevolence. As this volume demonstrates, the many and varied attempts to master, marginalize, or manipulate fire can turn a natural and human hazard into a highly useful social and political tool.
Over at The Atlantic Cities, Emily Badger has a review called The Uncomfortable Politics Behind the History of Urban Fires. She notes how fires played a role in the contested theories and policies behind land use, property, and government:
In the United States, we’ve come to think of forest fires this way, as we spar over the rights of wealthy people to build their vacation homes in flammable places like Malibu. But the history of urban fires is similarly political, in large part because it reflects the story of how governments came to view and value property.
"Fire is, of course, this threat to human life, but conspicuously it’s about the destruction of property," Sand says. "Is it the obligation of the city fathers or [government] to prevent peoples' private property from being destroyed?"
Badger's review and the book have a lot of interesting observations.
Friday, August 17, 2012
Martin D. Heintzelman (Clarkson--Business), Patrick J. Walsh, and Dustin J. Grzeskowiak (Clarkson--Business) have posted Explaining the Appearance and Success of Open Space Referenda. The abstract:
To guard against urban sprawl, many communities in the United States have begun enacting policies to preserve open space, often through local voter referenda. New Jersey sponsors such municipal action through the Green Acres Program by providing funding and low interest loans to towns that choose, through a referendum, to increase property taxes and spend the money raised on open space preservation for the purposes of conservation and/or recreation. Understanding which factors contribute to the appearance and success of these measures is important for policy makers and conservation advocates, not only in New Jersey, but across the United States. Although previous literature has examined this issue, this is the first study to account for spatial dependence/spatial autocorrelation and to explore dynamic issues through survival analysis. The traditional two stage model from the literature is extended by incorporating a Bayesian spatial probit for the first stage and a maximum-likelihood spatial error model in the second stage. A Cox – proportional hazard model is used to examine the timing of referenda appearance. Spatial dependence is found in the second stage of the analysis, indicating future studies should account for its influence. There is not strong evidence for spatial dependence or correlation in the first stage. The survival model is found to be a useful complement to the traditional probit analysis of the first stage.
Thursday, August 16, 2012
Foreign Policy recently has published its Special Report "Cities Issue." While the issue is themed on urban affairs generally, its articles coalesce around the amazing urban development taking place in China. From the website intro:
Our special issue dedicated to the cities of the future has its eye squarely toward China, because the cities of the future are increasingly going to be speaking Mandarin -- even more than you realize. It's no longer news that China has embarked on the largest mass urbanization in history, a monumental migration from country to city that will leave China with nearly a billion urbanites by 2025 and an astonishing 221 cities with populations over 1 million. But this isn't just about size: It's about global heft. And that's where the scale of China's transformation into a world leader is truly astonishing. In an exclusive index for FP, the McKinsey Global Institute has run the numbers to produce what we're calling The 75 Most Dynamic Cities of 2025 -- an extraordinary 29 of which are in China. Some are already global powers, from top-ranked Shanghai to manufacturing dynamo Shenzhen; others, from Fuzhou to Xiamen, were little more than provincial backwaters in the 20th century but look to be household names in the 21st, powering the global economy not just through their sheer size but also through their urban innovation and pulsing drive. Europe, meanwhile, will manage only three cities on the list by 2025; the United States finishes second to China -- a very distant second -- with 13. Still think that debate about Western decline is overblown?
There are a whole bunch of interesting articles at the website. Just one that I'll highlight is New Urbanism pioneer Peter Calthorpe's Weapons of Mass Urban Destruction: China's Cities are Making the Same Mistake America Made on the Path to Superpower Status. Again, there's a whole lot of interesting analysis at the FP Cities Issue website.
Sunday, August 12, 2012
Sarah Krakoff (Colorado) and Ezra Rosser (American U) have posted Tribes, Land, and the Environment (Introduction), the intro to their new book TRIBES, LAND, AND THE ENVIRONMENT, Sarah Krakoff & Ezra Rosser eds., Published by Ashgate, ISBN 978-1-4094-2062-0, 2012. The abstract:
About the book: Legal and environmental concerns related to Indian law and tribal lands remain an understudied branch of both indigenous law and environmental law. Native American tribes have a far more complex relationship with the environment than is captured by the stereotype of Indians as environmental stewards. Meaningful tribal sovereignty requires that non-Indians recognize the right of Indians to determine their own relationship to the land and the environment. But tribes do not exist in a vacuum: in fact they are deeply affected by off-reservation activities and, similarly, tribal choices often have effects on nearby communities. This book brings together diverse essays by leading Indian law scholars across the disciplines of indigenous and environmental law. The chapters reveal the difficulties encountered by Native American tribes in attempts to establish their own environmental standards within federal Indian law and environmental law structures. Gleaning new insights from a focus on tribal land and property law, the collection studies the practice of tribal sovereignty as experienced by Indians and non-Indians, with an emphasis on the development and regulatory challenges these tribes face in the wake of climate change. This volume will advance the reader's knowledge and understanding of these challenging issues.
Prof. Rosser also sends along the links to the Ashgate publisher's page and to the Table of Contents. There are a lot of land use issues involved here and it's definitely a book worth checking out. Contributions include essays by the two editors and our own Jessica Owley, among other thoughtful writers.
Thursday, August 9, 2012
Sara C. Bronin (Connecticut) and J. Peter Byrne (Georgetown) recently published a new casebook called Historic Preservation Law, Foundation Press 2012. HP is quickly becoming a central part of land use planning, as the authors make clear in this excerpt from the Preface:
This book was written for anyone interested in the increasingly important area of historic preservation law. With this book, we hope to advance and encourage the teaching of preservation law, shape the way the field is conceived, and create a practical resource that will be consulted by attorneys and other preservation professionals.
Our approach to the subject is reasonably straightforward. We present the most significant legal issues in preservation and place them in a contemporary context, identifying contested questions and areas of reform. The format of the book is traditional: edited leading cases with notes that provide explanation, extension, and issues for discussion. Given the interdisciplinary nature of the field, we belive that the legal issues can only be understood in light of historical, aesthetic, political, and administrative issues that make up the larger realm of preservation. Accordingly, we provide secondary materials, both legal and non-legal.
Because we focus on preservation of buildings and sites, we present preservation as part of land use or urban development law. Thus, we provide extensive treatment of local preservation law, which regulates private property, as well as relevant issues in real estate finance and project development. We also provide comprehensive treatment of federal law, including the National Historical Preservation Act and related statutes. In addition, we explore federal laws that address preservation vis-a-vis cultural property issues, particularly regarding Native American and archaelogical sites. Preservation has also generated important and interesting constitutional questions related to takings, religious freedoms, and free speech rights, which we address.
This is the first, or at least the most recent, major casebook on the law of historic preservation that I know of. Professors Bronin and Byrne, who are also accomplished scholars in the land use field generally, have provided us a major contribution with this book, which looks to be *the* significant text in HP law. Land use scholars and professionals should definitely have this one on their shelves.
August 9, 2012 in Constitutional Law, Development, Federal Government, Historic Preservation, History, Local Government, Property, Real Estate Transactions, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)
Tuesday, July 24, 2012
Over at Property Prof, Steve Clowney gave well-deserved kudos to two property professors who were selected to present their papers at the prestigious Harvard/Stanford/Yale Junior Faculty Forum this summer.
I should add, though, that these two rising stars are not just property profs, but land use profs in their teaching and research. Our own Land Use Prof blogger Ken Stahl (Chapman) presented his very interesting paper Local Government, One Person/One Vote, and the Jewish Question, and Ashira Ostrow (Hofstra) presented her forthcoming article Land Law Federalism.
Congrats to both, and way to represent those of us in the property and land use junior ranks!
Patricia Salkin (Albany) has posted Zoning Ordinance Variances, published in the American Planning Association's PAS Quicknotes, no. 38 (2012). The abstract:
This short piece designed for planners describes the purpose of variances, both use and area variances, conditions on variances and alternatives to variances.
It is an excellent short introduction to the legal concept of variances. There is a lot of confusion out there on the differences between variances, special exceptions, nonconforming uses, and zoning amendments as methods for altering the rules. In addition to planners, I think it would also be a great piece to share with clients, community members, . . . and land use law students.
Tuesday, July 17, 2012
John Infranca is a Legal Research Fellow at the Furman Center. Prior to joining the Center, he served as a law clerk to Judge Julio Fuentes, United States Court of Appeals for the Third Circuit, and Judge Berle Schiller, United States District Court for the Eastern District of Pennsylvania. John received a J.D., Order of the Coif, from New York University School of Law, where he was an editor of the New York University Law Review, a Lederman Fellow in Law and Economics, and a fellow in the Arthur Garfield Hays Civil Liberties Program. He also earned a B.A and an M.T.S. degree (in moral theology) from the University of Notre Dame. After college and during graduate school, John worked with a number of homeless services organizations, as a case manager for refugees, and as the director of a service learning program in Mexico. He has authored law review articles on the Earned Income Tax Credit and the informal economy, on protecting social security benefits from bank freezes and garnishments, and on institutional free exercise and religious land uses. At the Furman Center, John’s research focuses on land use regulation, affordable housing and urban policy. His recent projects have included providing technical assistance to the court-appointed monitor overseeing a fair housing settlement, analyzing the impact of the market downturn on multi-family rental housing, and legal and empirical studies of development rights transfers, rezonings, and residential landlord characteristics and behaviors.
John already has some great writing out there, and I've seen him at ALPS; we're thrilled to have this rising star join us at the Land Use Prof Blog for the next month.
Thursday, July 12, 2012
I’ve just returned from several weeks of travel, and thought I’d post on several items I saw along the way. The first of these was a utopian community in Copenhagen, Denmark, called Christiana. Christiana is on an island, Christianhavn, adjacent to the central city of Copenhagen that had been used for military purposes for centuries. When the Danish military closed a base on the island in the Sixties, some freedom-loving hippies and other radicals set up shop by squatting on the land, declared their independence from the Danish state (adverse possession is for sissies, apparently), refused to pay taxes, and otherwise have engaged in community- and ganja-based decision-making ever since. About 1,000 residents now call Christiana home.
There are several aspects of Christiana that I think land use folks will find interesting. First, after four decades of tolerating open rebellion in its midsts, the Danish government finally decided that it needed to do something about Christiana. You might be anticipating a “throw the bums out” approach; but remember, this is Denmark, not Rudy Giuliani’s New York City. Instead of mounting riot troops at Christiana’s borders, the Danish government sent in their lawyers with an ultimatum: Christiana’s residents could stay, but they would have to buy the land from the Danish government. But the Danish government did not demand the market price for the property; instead, they offered the property to Christiana’s residents for a song. In a sense, all the Danish government is seeking to do is to legitimate the ownership of the land; in other words, if Christian’s residents “own” the land, there is some acknowledgment of the government’s control and sovereignty over that land. But, of course, the Christiana residents disdain this idea of ownership even though they need to raise capital to purchase the land.
The result has been one of the most peculiar of solutions: a stock offering of nominal ownership that investors can purchase.
As the New York Times described it:
[Christiana's residents] decided to start selling shares in Christiania. Pieces of paper, hand-printed on site, the shares can be had for amounts from $3.50 to $1,750. Shareholders are entitled to a symbolic sense of ownership in Christiania and the promise of an invitation to a planned annual shareholder party. “Christiania belongs to everyone,” Mr. Manghezi said. “We’re trying to put ownership in an abstract form.”
Since the shares were first offered in the fall, about $1.25 million worth have been sold in Denmark and abroad. The money raised will go toward the purchase of the land from the government.
I found this struggle over the idea of ownership to be fascinating. After all, the amount the Danish government is seeking from Christiana is far below the market price of the land in the now trendy area of Christianhavn. However, what the government is doing is forcing the utopian community out of its stance of declaring “independence” from the Danish state, while Christiana’s residents attempt to use arcane legal structures to avoid sullying their hands with the prospect of “ownership.” Am I the only one who thinks of Johnson v. M'Intosh on these facts?
The second interesting issue in Christiana was a poster located on the community’s main meeting room, which establishes the community’s “common law.” A picture is to the right. Now, at first blush, this will not look much like common law, but rather a visual statutory scheme, or maybe even something like the Ten Commandments if written for a biker gang. But it was the kind of rules that interested me: they speak, I think, to the kinds of problems that must have evolved in Christiana over time: hard drugs, biker’s colors, firearms, and so on. Each of these rules, you can imagine, resulted from a particular incident, and so a “common law” evolved in this place where all decisions are made collectively. Such a common law speaks to the potentially rough nature of standing as a state independent from the protection of the sovereign. It made me think of the devolution of all of the United States’ utopian communities, from New Harmony on down. Is such a slide into anarchy, or the fight against anarchy, inevitable in such utopian movements? I don’t know, but Christiana remains, and it seems to continue to thrive despite its troubles. It eeks out a living on the sale of rasta trinkets and “green light district” paraphernalia. And even in this space where there is supposedly no sovereign, there is still some law, borne of hard experience, common to all. Its future, cast somewhere between lawfully-abiding property owner and anti-property ownership crusaders, between freedom and the "common law's" protections, will be interesting to watch in the coming decades.
July 12, 2012 in Aesthetic Regulation, Architecture, Community Economic Development, Comparative Land Use, Constitutional Law, Development, Economic Development, Eminent Domain, Globalism, Planning, Property, Property Rights | Permalink | Comments (0) | TrackBack (0)
Thursday, June 21, 2012
the mortgage wins. Because I am a conservation easement nerd savvy academic, I have Westlaw alert me every time a case mentions the term "conservation easement." For years, this yielded very few cases and I only received alerts once a month or so. Lately, I have been getting them daily. Many of these cases come from the tax court and have to do with valuation issues, one line of cases however explores mortgage subordination.
Conservation easements are nonpossessory interests in land that restrict a landowner's use of her property with a goal of yielding a conservation benefit. Many landowners donate conservation easements (i.e. voluntarily restrict the use of their property). Such donations can yield significant federal tax deductions. For a conservation easement (or historic preservation easement) to qualify for a charitable tax break, the restriction must be perpetual. The IRS, Tax Court, and others have acknowledged that it is well nigh impossible to ensure perpetuity of these things. Instead, the IRS has explained that it will consider a restriction to be perpetual if when the restriction is terminated, the beneficiary gets the proceeds. Basically, when a conservation easement is terminated (for any variety of reasons/methods), the holder of the conservation easement will get cash for its porportionate value. Ideally, the holder then uses that money to protect other lands. If your conservation easement doesn't have a provision detailing this procedure, the IRS (in theory) will disallow your deduction. To ensure that the holder will be able to get the proceeds from a land sale, the conservation easement holder must have primary rights to the proceeds. That is, other restrictions on the land must be subordinated (everyone else gets in line behind the conservation easement holder when proceeds from the sale are passed out). This is why the IRS requires any mortgages on the land to be subordinate to the conservation easement.
There have been a few cases from the tax court exploring this issue and most of them seem to involve historic facade easements. In Kaufman v. Commissioner (134 T.C. 182 Apr. 2010), the Tax Court concluded that a facade easement did not qualify for a tax deduction because it wasn't really perpetual because there was a non-subordinated mortgage encumbering the property. The landowners argued that the lack of subordination did not necessarily mean that the holder would not get its proceeds, but the court didn't care. There was a possibility that the facade easement holder would not be able to receive the proportionate share.
Last week in Wall v. Commissioner (T.C. Memo. 2012-169, June 2012), the Tax Court reached a similar result even though the conservation easement (again a facade preservation easement) declared that it all exisiting mortgages were subordinate. The court did not take the conservation easement at its word and instead looked at the text of the mortgage subordination. The two banks involved executed documents appearing to subordinate the mortgages (based on the title and opening provisions of the documents), but a closer reading revealed that the banks still were claiming that they had "prior claims" in the event of any foreclosures or eminent domain proceedings. The presumption that the mortgages get first dibs at the moola stems mostly from the fact that they encumbered the land prior to the facade easement.
However, I think the main lesson here is that there is almost a presumption against the restrictions being perpetual and any possibility that the proportionate proceeds won't get paid to the conservation easement holder mean no tax deduction.
Monday, June 18, 2012
Bustic, Gaeta & Radeloff on Using Zoning and Land Acquisition to Increase Property Values and Help Fish
The ability of zoning and land acquisition to increase property values and maintain largemouth bass growth rates in an amenity rich region
Source:Landscape and Urban Planning, Volume 107, Issue 1
Van Butsic, Jereme W. Gaeta, Volker Radeloff
Land use change is a leading cause of environmental degradation in amenity rich rural areas. Numerous policies have been used to combat these negative effects, including zoning and land acquisition. The empirical effects of these policies on the environment and land markets are still debated. Using a coupled economic–ecological model in conjunction with landscape simulations we investigate the effect of zoning and land acquisition on property prices and largemouth bass (Micropterus salmoides) growth in Vilas County, WI, an amenity rich region with growing rural development. Using econometric models of land use change and property prices, we simulate four alternative land use scenarios: a baseline simulation, a zoning change simulation, a land acquisition program simulation, and a land acquisition program+zoning simulation. Each scenario is simulated over 82 separate lakes. For each scenario we calculate the length of a 20-year old largemouth bass, property prices, and number of new residences at simulation years 20, 40 and 60. The policies have small effects on largemouth bass size and property prices on most lakes, although the effects are more pronounced on some. We also test if the increased property values due to land acquisitions are greater than the cost of the land acquisition program and find that in our case, land acquisition does not “pay for itself”. Our methodology provides a means to untangle the complex interactions between policy, land markets, and the environment. Empirically, our results indicate zoning and land acquisition are likely most effective when targeted to particular lakes.
Saturday, June 16, 2012
Here is a call for papers that may be of interest to some of our readers. I would love to submit somthing myself, but it seems like this is the 100th event scheduled for October 12th.
Call for Papers: Washington and Lee's "Climate Change in the Former Colonies: Challenges of Property and History"
From the CFP:
Washington and Lee University School of Law’s Law and History Center, in partnership with Virginia Sea Grant, will host a symposium on Climate Change in the Former Colonies: Challenges of Property and History. Recognizing the unique impact that the colonial legal experience continues to have on Eastern states, the symposium will focus on the application of legal historical research to contemporary problems and opportunities in the areas of policy-making, property rights, and hazard resilience in coastal communities. Panel presentations and potential topics include:
- How the colonial legal experience affects modern property rights and our responsiveness to climate change
- Historical and modern property doctrines—particularly nuisance, zoning, and eminent domain—and their relation to current climate change challenges and policies
- Changing notions of acceptable land use and natural resources
- Environmental hazard resilience policies and opportunities for their enhancement via legal strategies
We are open to suggestions of other related topics.
You can download the full CFP here:
Thursday, June 14, 2012
I meant to post this when it came out late last month but exam grading swallowed me up for a while; many of you have probably already seen this announcement elsewhere. Anyway, tomorrow (June 15) is the deadline to submit abstracts for what will surely be one of the highlights at next year's AALS. Via Shelley Saxer and Tim Mulvaney:
The AALS Section on Property is pleased to announce a Call for Papers for its joint program with the AALS Section on Natural Resources & Energy Law during the AALS 2013 Annual Meeting in New Orleans, LA. This joint program, entitled “40 Years of Environmental and Natural Resources Law: A Prospective Look,” will forecast how the law surrounding environmental and natural resources might change in the four decades to come. It is scheduled for Monday, January 7, and accompanies a companion program jointly sponsored by the AALS Sections on North American Law and Environmental Law, which is entitled “40 Years of Environmental and Natural Resources Law: A Retrospective Look.” Therefore, this event in its entirety will include four interrelated one-and-one-half-hour sessions.
The specific session organized by the Section on Property is centered on “A Prospective Look at Property Rights.” Broadly speaking, the panelists will examine the legal and political issues that local, national, and international communities confront in seeking to balance public and private interests in the face of significant modern environmental and natural resource challenges. The Section on Property seeks one to two papers that will advance this session’s theme and complement the scholarly perspectives of the following speakers: Maxine Burkett (University of Hawaii School of Law), Steven Eagle (George Mason University School of Law), John Echeverria (Vermont Law School), and Carol Rose (invited) (University of Arizona College of Law). The George Mason Law Review has agreed to publish papers emanating from this session’s presentations in the spring of 2013.
Full-time faculty members of AALS member and fee-paid law schools are invited to submit an abstract not exceeding one page by e-mail to Shelley Saxer (Pepperdine University School of Law), the Chair of the Section on Property Law, at Shelley.Saxer@pepperdine.edu by June 15, 2012. Professor Saxer will select one or two of the submissions for inclusion in the program in consultation with the Section’s officers. Submitting authors will be notified of the results of the selection process by July 1, 2012. To assure timely publication, selected authors should plan to submit their papers of 7,000-8,000 words above the line to the George Mason Law Review by November 1, 2012. The selected authors will be responsible for paying their annual meeting registration fee and travel expenses. Questions should be directed to Professor Saxer at the above-noted email address.
Friday, June 1, 2012
Yesterday, I spent a delightful jam-packed six hours at a constitutional environmental rights workshop at Widener Law School (Delaware not Pennsylvania) hosted by James May and Erin Daly. The workshop brought in scholars from many corners of the US and elsewhere to talk about how environmental rights are and should be embodied in national and subnational constitutions.
The participants indulgently listened to me ramble about a very new project I have examining the constitutionalization of the Public Trust Doctrine. While many others have written cogently and persuassively about the role of the public trust doctrine (Sax, Thompson, and Blumm jump quickly to ming) and powerhouses like Robin Kudis Craig (I love that she has a wikipedia page) have even helpfully catalogued public trust language in state constitutions, I am seeking to explore the "so what" part of the question. If a state chooses to constitutionalize their public trust doctrine, does that result in any on the ground changes? Are those state more likely to have healthier environments? Are those courts likely to be more protective of the environment? Will the state legislatures feel obligated empowered to pass legislative protecting natural resources? These are the questions I am seeking to explore. (Any advice on how to do so would be warmly welcomed).
Tuesday, May 22, 2012
How can you pass up a document called "Beware the Dark Side of Trees?"
K.K. DuVivier recently posted a very helpful document about planting trees in a way that does not reduce the potential passive solar heating you can get for your home. It even comes with helpful diagrams. Who knew a law professor could produce something so practical!
Here is DuVivier's abstact:
Everyone loves puppies, and everyone loves trees. But just as we had to learn to curb and clean up after our dogs, we now need to learn to become responsible tree owners. Many of today’s well-intentioned tree-planting programs ignore the dark side of trees that threaten green energy solutions such as urban gardens, buildings with passive solar designs, solar hot water, and solar-generated electricity systems.
This short pamphlet (one 2-sided page with illustrations) is an attempt to alert everyone to be aware of the dark side of any tree you plant — both the planting location and the shade footprint. Otherwise, any carbon-capture gains from the new trees may be offset by the increased fossil-fuel burned to replace the clean solar energy lost.